The opinion of the court was delivered by
Provosty, J.Defendant was tried for robbery. The prosecution, after showing that a witness was absent, not permanently absent, from the State, offered in evidence his testimony taken at the preliminary examination under the provisions of Act 123 of 1898; and the defendant objected on the ground that until the absence of the witness had been shown to be' permanent, his testimony was inadmissible. The judge let in the testimony, founding himself on the following clause in said Act 123, to-wit: — “When the testimony so taken is certified to by the stenographer and signed by the judge, it may be used as evidence in any subsequent judicial proceedings in ease of the death or absence of the witness from the State.” It is observed that the act reads, absent, not permanently absent, from the State.
We think that the objection was good. The title of Act 123 reads as follows:—
“An Act to provide for the organization of the First and Second City Criminal Courts of the parish of Orleans, providing for their officers and their duties, and for certain rules of procedure and the effects thereof in the cases within their jurisdiction.”
The object of the act, as thus stated in its title, was to provide for the organization of the City Criminal Courts and for the regulation of procedure in the City Criminal Courts, not in the District Criminal Court. The act did not undertake to regulate procedure in the District Criminal Court, and cannot be held to have done so. If the clause in question, upon which the trial judge based his ruling, were construed to have the operation of regulating proceedings in the District Court, it would be construed to operate beyond the scope of the title of the act; that is, it would be construed into unconstitutionality. And it would be unconstitutional for the further reason that it would be establishing for the parish 'of Orleans a different rule from that which obtains in the State at large. It would be in the nature of a special law regulating the practice of a court and changing the Tules of'evidence, in contravention of Article 48 of the Constitution. We think *482that hy the clause in question nothing more was intended than to enunciate the rule of evidence that testimony taken at a preliminary examination becomes admissible on a subsequent trial in case of the death or permanent absence of the witness.
The defendant objected to the evidence on the further ground, “That no proof had been offered on behalf of the State that the testimony as read by the counsel for the State was a true and correct report, no witness or evidence having been placed on the stand that the witness Easton was sworn, or that the testimony had been read to the witness Easton after having been taken in stenographic notes at the preliminary examination.” We think this objection was not good. The notes, if taken in conformity with Act 123, made full proof of themselves, being a judicial record, and did not need to be proved aliunde. The charge of the judge that the jury could find for any one of the lessor crimes included in robbery, was proper.
The admission of the testimony in question had the effect of vitiating the verdict.
It is therefore ordered, adjudged and decreed that the verdict and sentence herein be set aside, and that the case be remanded to be proceeded with according to law.